Peoria County IL Archives Court.....Gray, V McFadden 1850
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Source: Records Of Cases Illinois
Written: 1850
Andrew Gray, appellant, v. James McFadden, appellee.
Appeal from Peoria.
A patent under the act of congress of the fifteenth of May, 1820, passed in
relation to French claims, at Peoria, could only issue to the claimant, or his
legal representative. (a)
This was an action of ejectment brought in the Peoria Circuit Court, to
recover the possession of certain village lots in Peoria, being a part of the
French claims. The declaration and other pleadings are in the usual form. The
action was brought against other parties by Mr. McFadden, but Gray was made
defendant in their stead, he having admitted himself to be in possession of
the premises, at the time of the commencement of the suit. At August term,
1850, of the Peoria Circuit Court, Kellogg, Judge, presiding, the cause was,
by agreement, submitted in the court for trial, whereupon the court, after
hearing the evidence, found for McFadden, and entered judgment accordingly.
Gray brought this cause to this court by appeal. This and the preceding case
turn upon the same point.
O. Peters, E. N. Powell and T. L. Dickey, for appellant.
H. O. Merriman and N. H. Purple, for appellee.
Treat, C. J. This was an action of ejectment brought by James McFadden against
Andrew Gray. It resulted in a judgment for the plaintiff. The premises in
dispute were a part of French claims eleven, forty-one and forty-two in Peoria—
eleven and forty-one covering the same ground. The proof on the part of the
plaintiff was the same as in the case of McFadden v. Ballance. For the facts
and the opinion of the conrt, reference is here made to the report of that
case, ante, p. 317. That decision fully disposes of so much of this case as
relates to lot forty-two. It was there held that the patent, under which the
plaintiff claims title, was absolutely void as to that lot. And we hold that
it was equally so as to lot forty-one. The patent had no sufficient basis. It
was founded on the assumption that Wilette was the settler within the purview
of the act of the third of March, 1823, and, consequently, that his legal
representatives were entitled to the benefits of that act. That conclusion was
unauthorized. It by no means follows, because Wilette settled upon and
improved this lot, his legal representatives were entitled to a patent
therefor. As we have already said, in the former case, the secretary of the
treasury clearly exceeded his authority in causing a patent to issue to any
other person than the claimant under the act of the fifteenth of May, 1820, or
his legal representatives. It was not enough, that a person was a settler
prior to the first of January, 1813, but he, or his legal representatives,
must also have claimed the lot so settled upon and improved, to bring himself,
or themselves, within the provisions of the confirmatory act. That act did not
confirm any other claims than those contained in the report of the register.
And the confirmation operated exclusively to the benefit of the claimants, and
their legal representatives. No claim was ever made to lot forty-one, either
by Wilette or his legal representatives. It is true that Pilette, in right of
his wife, who was a daughter of Wilette, was a claimant; but he did not claim
in the character of a legal representative. The phrase "the daughter of the
late Francis Wilette," was merely descriptive of the person. Pilette and his
wife, as individuals, and not as the legal representatives of Wilette, were
the claimants. If they were entitled to a patent, it should have been issued
to them by name, and not to the legal representatives of another person. And
this should have been the case, even if they had claimed the lot in the
character of the representatives of Wilette. It was clearly the duty of the
secretary to direct the patents to be issued to the real claimants, or to
their legal representatives. Under the rule adopted by him, if Wilette had
left ten descendants, they could all now claim to hold under this patent, as
tenants in common, although in point of fact, but one of their number ever
interposed a claim to the lot, and that, too, not on behalf of such
descendants generally, but for himself exclusively. Where a party made a claim
under the act of 1820, and died either before the passage of the confirmatory
act, or the issuing of the patent, it might very properly issue to his legal
representatives. But in other cases, the patent ought to issue directly to the
claimant.
The court erred in permitting the patent to be read in evidence; and its
judgment must be reversed, and the cause remanded.
Judgment reversed.
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(a) See Ballance v. McFadden, ante 317, and note (a).
Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill.
1881.
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